Book Review: The Twilight of Human Rights Law, by Eric Posner

“Human rights law has failed to accomplish its objectives. More precisely, there is little evidence that human rights treaties, on the whole, have improved the well-being of people, or even resulted in respect for the rights in those treaties.” So argues Eric A. Posner in his Introduction to The Twilight of Human Rights Law. The fourteenth book in the Inalienable Rights series, published by Oxford University Press, The Twilight of Human Rights Law offers candid explanations for limited progress on human rights. Posner’s central argument is that human rights law is grounded in a view that the good in every country can be broken down to a set of rules that are capable of being enforced in an impartial way. He terms this “rule naiveté”, which he considers partly responsible for the proliferation of human rights, making meaningful enforcement impossible.

Posner presents in chapter one a thorough overview of the history and development of international human rights law. He highlights, in particular, the United States’ and other Western European governments’ resort to torture in the aftermath of September 11th, noting this a challenge to the human rights regime. The role played by NGOs in advocating human rights is also acknowledged.

Chapter two provides keen analysis of key institutions of human rights, and examines their effectiveness in ensuring states’ compliance with treaty obligations. One constraint highlighted was the weakness of the United Nations Human Rights Committees, which lack the power to sanction or issue legally binding judgments. The European Court of Human Rights (ECHR) and its limitations are also explored. Despite its jurisdiction over approximately 800 million people, the ECHR is unable to strike down domestic laws, which in Posner’s view, limits the effect of each of its decisions. However, while Posner does mention the success of the ECHR with cases such as Hirst v. United Kingdom, the book could have benefitted from more discussion on the impact of Convention rights on English Law, particularly since the entry into force of the Human Rights Act (HRA) 1998.

Over the next three chapters, Posner explores why states enter into human rights treaties and reviews the rates of compliance and the factors accounting for their compliance. He raises important points about the relationship between a country’s level of development and its record of compliance, and the competing needs with which developing states must grapple. For example, “a law that provides greater health services to women…might result in fewer funds for schools, so that the net effect of the law is to improve compliance with CEDAW but reduce compliance with ICESR” (p.72). Another salient point is the challenge of conducting research on states’ compliance, given limited data and the methodological difficulties involved.

Posner reflects in chapter six on whether human rights law serves to discourage states from engaging in warfare. On a pessimistic note, he recounts a number of conflicts, many of which were initiated as a result of human rights violations. He also compares conflicts among authoritarian, quasi-authoritarian and democratic states, noting that “democracies are quite warlike-with non-democracies rather than with each other. Thus, respect for human rights in democracies does not lead to a generalized pacifism or aversion to war, or even to a preference (relative to authoritarian countries) for resolving conflicts using peaceful means.” (p.126).

In concluding, Posner admits successes, but he lays bare the overall systemic shortcomings and the unique challenges of various states. However, he suggests there is hope in a “fresh start” and a humbler approach on the part of Western nations. While the inclusion of a table of cases would have enhanced the book, it is nevertheless replete with data, including an extensive List of Rights (Appendix) and a bibliography. The Twilight of Human Rights Law is an important assessment of human rights law, useful for human rights scholars in general, persons interested in European Union law or anyone who desires a current analysis of human rights law. It can be read in tandem with Christian Tomuschat’s Human Rights: Between Idealism and Realism, 3rd ed. (2014), also by Oxford University Press.